Click the wrong link, download the wrong file, or make a mistake installing a new program, and your computer might pop up a dreaded message: “Fatal error occurred. If the problem persists, contact your systems administrator. Error Code: 7c812a5bh.”
Faced with this text (and usually a big red “X”) we all have the same first thought: “Well that wasn’t helpful!”
Most of us are familiar with the feeling of powerlessness and frustration that accompanies being on the receiving end of similar alerts. Unless you’re an IT professional (and even if you are), you may have no idea what this message actually signifies, where you went wrong, what it will cost to fix the problem, or even whether the “error code” numbers are useful in identifying the source of the failure. All we know is that there is a problem, and we are fairly certain the solution is out of our hands.
This is how many entrepreneurs and businesses faced with litigation — whether on a one-off basis or as part of their ongoing operations — feel right before they feel obligated to make a phone call to their lawyer. A deal has gone south, or a customer has been injured, a case has been filed, and now it’s time to call a lawyer to “handle it.” (Groan). An enormous and incomprehensible legal bill will be sent every month, which will be grudgingly paid or haggled over, but hopefully the case will eventually go away.
The problem here is not the fault of the client, but of the lawyer. Most lawyers operate with a degree of self-imposed isolation from their clients. The “deal-gone-south” becomes a “case.” The “customer injury” becomes a “case.” Litigators see themselves as adding value to their clients’ operations by systematically transmogrifying a real-world situation into the set of “facts” necessary to navigate complicated dispute resolution procedures in court — something they believe their clients don’t really want to care about or need to understand.
While businesses and entrepreneurs, by trade, are always looking forward for new ways to shape the future and overcome obstacles in a variety of ways, their counsel almost never think of their role as anything beyond “just handle the case and send the bill.” Instead of seeing a legal matter as something to involve the client with to create a positive result, its treated as something to protect the client from to limit a past liability — to just make the “error message” go away. They see their role as cleanup crew apartfrom their client’s objectives, rather than a tool to be used as an integral aspect of their client’s entrepreneurial endeavors.
Writing for Forbes, Mark A. Cohen put it this way: “Law is seldom associated with entrepreneurs. Lawyers are a cautious bunch focused on precedent, risk containment, and tend to be reactive — not innovative. Entrepreneurs are a different breed. They create new business models in response to market voids, deploying risk capital to achieve customer satisfaction and scale. Entrepreneurs require passion, knowledge, vision, process, resources, expertise, execution, results, performance metrics, constant improvement, collaboration, transparency, scalability, and access to capital.” (Mark A. Cohen, The Golden Age of the Legal Entrepreneur – Why Now and Why it Matters, Forbes.com(June 1, 2018)).
A few weeks later, Jonathan Marciano at Entrepreneuradded: “There is a traditional view of lawyers as the enemies of entrepreneurs. . . . [Their] traits may be good for pouring over documents, but are less useful when powering fast-growing businesses.” (Jonathan Marciano, 10 Lawyers-Turned-Entrepreneurs Creating a Revolution in Law, Entrepreneur.com(June 14, 2018)).
Rather than being thought of as “system administrators” having little in common with entrepreneurs and only to be contacted after receiving the dreaded “error message,” lawyers should seek to embody the entrepreneurial spirit and tenacity that drive successful startups. But to do so, they must learn to think of every new matter as if it were its own new business venture on behalf of the client and to organize it accordingly.
Lawyers and their firms should view their approach as not merely reacting to a “case,” but integrating their clients’ objectives into a workflow of deliverables that explore the idiosyncrasies, objectives, and unique strategy of each new matter. They should be setting internal deadlines with the client, and planning for and meeting milestones. They should be building a team of other lawyers and professionals according to the demands the outcome requires. They should be monitoring their successes and setbacks in real time and tweaking their approach accordingly to accomplish a mission for the future. Everything in business and entrepreneurship is accompanied by a sense of urgency — time to market, time to rollout, etc. — and so too must lawyers learn to implement strategies in a systematic way. And finally, like entrepreneurs, lawyers should always be on high alert for external opportunities that inform a clearer path forward to a possible business resolution that enables their clients along the path to success.
Of course, once a “case” is in court, a lawyer may be necessary to help navigate the dispute through the new sets of rules that apply, but at bottom, for the business, it’s the same problem or dispute that existed before — only in a different forum (court) — and it still demands an inspired business solution. Litigation, though often unwelcome, should not be thought of as a situation to apply a mere administrative fix to an unwelcome “fatal error” message. Handled properly, the course of a case can be developed into a useful asset in finding a solution to an existing business problem, and lawyers and entrepreneurs might find themselves to be allies after all.
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